FOR IMMEDIATE RELEASE                                                
October 30, 2017
CONTACT: Ryan Williams
202-677-7060

NLRB’s Worst General Counsel

Richard Griffin Leaves As Job-Killing Union Shill

Richard Griffin’s Unconstitutional Recess Appointment To Be An NLRB Member:

President Obama Recess-Appointed Democrat Union Attorney Richard Griffin To The NLRB In January 2012. “President Barack Obama on Wednesday said he will use a recess appointment to put two Democrats and one Republican on the National Labor Relations Board.  The move sidesteps Senate approvals to prevent the board from all but ceasing to function this year … The appointees include Democratic union lawyer Richard Griffin, Democratic Labor Department official Sharon Block and Republican NLRB lawyer Terence Flynn.” (Melanie Trottman, “Obama Makes Recess Appointments to NLRB,” The Wall Street Journal, 1/4/12)

• Obama Had Been Under Pressure From Big Labor To Make The Appointment. “Labor and progressive groups had been pushing Mr. Obama to use the Congressional break to appoint the two Democratic nominees he nominated in mid-December, while business groups and congressional Republicans had urged him to go through the traditional route of gaining Senate approvals through lawmaker votes.  By choosing to work around them, Mr. Obama is making it clear that he isn’t willing to wait to see whether any avenues for cooperation with Republicans would open up.” (Melanie Trottman, “Obama Makes Recess Appointments to NLRB,” The Wall Street Journal, 1/4/12)

President Obama Made The Appointment When He Claimed The Senate Was In Recess. “The Constitution gives the president the power to nominate judges and executive branch officials, but the Senate must vote to confirm them before they take office … Mr. Obama, though, appeared to break new ground by acting at a time when the Senate was meeting every third day, specifically to deny him the chance to make appointments.  The problem is the word ‘recess’ has several meanings in legislative-speak.  It can mean a short break during the day, it can mean a break of days or weeks for a holiday, or it can mean the end of a yearly session.” (Stephen Dinan, “Obama Recess Appointments Unconstitutional,” The Washington Times, 1/25/13)

However, The U.S. Court Of Appeals For The D.C. Circuit Judged Griffin’s Appointment Unconstitutional. “In a case freighted with major constitutional implications, a federal appeals court on Friday overturned President Obama’s controversial recess appointments from last year, ruling he abused his powers and acted when the Senate was not actually in a recess.  The three-judge panel’s ruling is a major blow to Mr. Obama.  The judges ruled that the appointments he made to the National Labor Relations Board are illegal, and hence the five-person board did not have a quorum to operate.” (Stephen Dinan, “Obama Recess Appointments Unconstitutional,” The Washington Times, 1/25/13)

Richard Griffin Was Not Publicly Vetted:

“Because He Was Recess Appointed, Richard Griffin, Jr., Underwent No Congressional Scrutiny.” “Because he was recess appointed, Richard Griffin, Jr., underwent no congressional scrutiny before he was sworn in on Jan. 9 of this year.  At the time of his recess appointment, Sen. Mike Enzi, R-Wyo., ranking member of the Senate Health, Education, Labor and Pensions Committee, told the Wall Street Journal he was, ‘extremely disappointed’ in Obama’s decision to ‘avoid the constitutionally mandated Senate confirmation process.’  He said that two of three nominees for the NLRB, including Griffin, were submitted to the Senate on Dec. 15, just before the Senate was to adjourn, allowing only a day to review the nominees.” (Doug McKelway, “Obama Pick For NLRB Was Top Lawyer For Union Tainted By Mob Ties, History Of Corruption,” FoxNews.com, 6/22/12)

The Senate Was Given Only One Day To Examine The Nomination. “[Wyoming Sen. Mike] Enzi said that two of the three nominees were submitted to the Senate on Dec. 15, just before the Senate was scheduled to adjourn for the year.  That gave the Senate ‘only one day to consider and review these nominations,’ he said in a statement.” (Melanie Trottman, “Obama Makes Recess Appointments to NLRB,” The Wall Street Journal, 1/4/12)

The Wall Street Journal Asked, “Did The White House Counsel’s Office Vet [Richard Griffin] Properly?” “As a lawyer, Mr. Griffin was an officer of the court with legal obligations beyond his union duties.  At the very least, he should respond to the charges in the complaint and publicly explain everything he knew about the events that led to his role in terminating these employees.  As a recess appointee, Mr. Griffin was able to avoid Senate confirmation hearings.  Did the White House counsel’s office vet him properly, and if so did it turn up details of the firings and the aftermath?” (Editorial, “Richard Griffin’s Union Dues: An Obama Appointee At The NLRB Is Named In A Union Corruption Lawsuit,” The Wall Street Journal, 1/10/13)

Griffin Later Became The NLRB General Counsel:

Griffin Was Sworn In As General Counsel In November 2013. “Richard F. Griffin, Jr. was sworn in as General Counsel of the National Labor Relations Board on November 4, 2013 for a four-year term.  Prior to becoming General Counsel, Mr. Griffin served as a Board Member from January 9, 2012 through August 2, 2013.” (National Labor Relations Board, www.nlrb.gov, Accessed 10/25/17)

Griffin Has Been A Shill For Big Labor During His Time At The NLRB:

Joint Employer:

In October 2015, Griffin Basically Admitted The NLRB Was Investigating McDonald’s Because Of A Big Labor Funded Group. “The ‘sole reason’ that the National Labor Relations Board, the federal government’s main labor law enforcement agency, is pursuing a major case against McDonald’s Corp. is the efforts of a union-funded activist group, according to the board’s general counsel, Richard Griffin.” (Sean Higgins, “Union-Funded Activist Group ‘Sole Reason’ For McDonald’s Complaint: Labor Board,” The Washington Examiner, 10/20/15)

• Griffin: “The Sole Reason Why Our Agency Is Involved In The McDonald’s Situation Is Because There Is A National Campaign That’s Called The ‘Fight For $15.’” “‘The sole reason why our agency is involved in the McDonald’s situation is because there is a national campaign that’s called the ‘Fight for $15’ that is being run by a fast-food workers alliance that is seeking to raise wages in the fast food industry to $15 an hour,’ Griffin told the audience.” (Sean Higgins, “Union-Funded Activist Group ‘Sole Reason’ For McDonald’s Complaint: Labor Board,” The Washington Examiner, 10/20/15)

The Case Was About Whether Or Not McDonald’s Should Be Considered A Joint Employer. “A finding that McDonald’s Corp. is a joint employer with its franchisees would make the SEIU’s campaign much easier by allowing it to focus its efforts on the corporate parent rather than organizing the workers restaurant-by-restaurant.” (Sean Higgins, “Union-Funded Activist Group ‘Sole Reason’ For McDonald’s Complaint: Labor Board,” The Washington Examiner, 10/20/15)

The Service Employees International Union Runs The Group “Fight For 15.” “Fight for $15 is a nonprofit activist group founded and run by the Service Employees International Union, which has long sought to organize workers at fast-food chains.” (Sean Higgins, “Union-Funded Activist Group ‘Sole Reason’ For McDonald’s Complaint: Labor Board,” The Washington Examiner, 10/20/15)

Browning-Ferris Decision:

In August 2015, The NLRB Ruled That Companies Could “Be Held Responsible For Labor Violations Committed By Their Contractors.” “The National Labor Relations Board (NLRB) on Thursday handed down one of its biggest decisions of President Obama’s tenure, ruling that companies can be held responsible for labor violations committed by their contractors.” (Tim Devaney, “NLRB Rules Against Business In Pivotal Joint-Employer Decision,” The Hill, 8/27/15)

This Was Known As The Joint Employer Browning-Ferris Decision. “While the ruling from the independent agency specifically deals with the waste management firm Browning-Ferris, the so-called ‘joint employer’ decision could have broad repercussions for the business world, particularly for franchise companies.” (Tim Devaney, “NLRB Rules Against Business In Pivotal Joint-Employer Decision,” The Hill, 8/27/15)

• Griffin On The Decision: “I Think The Board’s Decision Is A Very Good Decision.” “‘I think the board’s decision is a very good decision,’ Griffin told Bloomberg BNA. ‘I think it’s a very well-written, well-reasoned opinion.’” (Chris Opfer, “New Joint Employer Liability Test Tough To Undo, NLRB Counsel Says,” Bloomberg BNA, 3/29/17)

The Decision “Overturned 30 Years Of Precedent.” “Under the new definition, which overturned 30 years of precedent, a company may be held liable for labor violations by other employers they contract with, by merely exercising indirect control or possessing unexercised potential control over work conditions like hiring, supervision, and wages.  This is a far-reaching change from the prior standard on when two companies would be deemed a ‘joint employer.’” (Trey Kovacs, “The Joint Employer Standard Still Causing Confusion,” Fox Business, 8/5/16)

The Decision Has Left Businesses Especially Franchisors Confused. “But even worse is the uncertainty caused by the vague and overly broad joint employer standard.  The NLRB left open-ended what constitutes indirect and unexercised potential control. In Browning-Ferris, the majority at the NLRB explained that they will look at the facts on a case-by-case basis and would not ‘address the facts in every hypothetical situation in which the Board might be called on to make a joint-employer determination.’  Nor has the NLRB issued any guidance in the year since to clarify the new standard.  This leaves the business community near-clueless as how best to avoid joint employer liability.” (Trey Kovacs, “The Joint Employer Standard Still Causing Confusion,” Fox Business, 8/5/16)

Micro Unions:

In December 2013, Griffin Tore Into “Misguided Criticism” Of The NLRB’s Specialty Healthcare Decision. “Griffin, who won Senate confirmation in October, spoke about his experiences as general counsel thus far, as well as his developing priorities, at the Cornell School of Industrial and Labor Relations in Manhattan, where he tore into what he saw as misguided criticism of the August 2011 Specialty Healthcare ruling.” (Ben James, “NLRB To Issue Guidance On Specialty Healthcare, GC Says,” Law 360, 12/13/13)

• Griffin Defended The Board’s Decision. “Friday, Griffin not only defended the Specialty Healthcare decision, but also said a guidance memorandum addressing Specialty Healthcare was on the horizon, though he didn’t elaborate on exactly what the memo would look like.” (Ben James, “NLRB To Issue Guidance On Specialty Healthcare, GC Says,” Law 360, 12/13/13)

The Decision Allowed Small Groups Of Workers The Ability To Form A Bargaining Unit. “By isolating a small number of workers in a small bargaining unit, it is far easier for unions to win an election.  This cherry-picking of smaller groups of employees could lead to increased numbers of fractured bargaining units, disrupting business operations and undermining stable labor relations as multiple units make competing demands for wages, benefits and work rules.” (U.S. Chamber Of Commerce, “Eliminate ‘Micro Unions’ And Restore Appropriate Bargaining Units,” 7/21/17)

• Griffin: “The Concern About Micro-Units Is Baloney.” “‘The concern about micro-units is baloney,’ Griffin said.  The 2011 ruling has not led to a difference in the size of bargaining units, he stated, noting that several bargaining unit cases where the Specialty Healthcare ruling has come up involve units that are larger than average. This echoed sentiments he expressed at the American Bar Association’s Annual Labor & Employment Law conference in November.” (Ben James, “NLRB To Issue Guidance On Specialty Healthcare, GC Says,” Law 360, 12/13/13)

Griffin Gets Confused About Ambush Election Rules:

During A 2015 Congressional Hearing, Griffin “Forgot” How Much Time Employers Would Have Under the NLRB’s Ambush Election Rule. “Richard F. Griffin, general counsel of the National Labor Relations Board (NLRB), ‘forgot’ the timeline that employers will face under new NLRB guidelines that critics have dubbed ‘ambush election rules.’” (Bill McMorris, “NLRB’s Griffin Forgets His Own Reforms,” The Washington Free Beacon, 3/25/15)

Griffin Was Asked By Representative Andy Harris “How Much Time Employers Have To Respond To Union Organization Petitions.” “Rep. Andy Harris (R., Md.) asked Griffin to clarify how much time employers have to respond to union organization petitions.” (Bill McMorris, “NLRB’s Griffin Forgets His Own Reforms,” The Washington Free Beacon, 3/25/15)

Harris Said There Would Be “Eight Calendar Days” Between The Filing Of A Petition And A Hearing. “‘Let’s just pretend that the union – because it actually understands that this deadline’s sped up – files the petition Thursday before Labor Day, by your laws that hearing has to be next Friday, right?  Eight calendar days,’ Harris said.” (Bill McMorris, “NLRB’s Griffin Forgets His Own Reforms,” The Washington Free Beacon, 3/25/15)

• Griffin Responded Saying It Was Business Days Not Calendar Days. “‘Business days.  It’s business days,’ said Griffin, a former union attorney with 34 years of experience.” (Bill McMorris, “NLRB’s Griffin Forgets His Own Reforms,” The Washington Free Beacon, 3/25/15)

Harris Then Responded Saying A Previous Testimony Said It Was Calendar Days. “‘You sure?  It says calendar days from that hearing,’ Harris said, holding up testimony from a previous House hearing on the NLRB proposal.” (Bill McMorris, “NLRB’s Griffin Forgets His Own Reforms,” The Washington Free Beacon, 3/25/15)

Griffin Then Turned Around To Ask For Clarification. “Griffin turned to someone off camera asking for clarification.  His microphone captured a male voice saying, ‘I forget.’” (Bill McMorris, “NLRB’s Griffin Forgets His Own Reforms,” The Washington Free Beacon, 3/25/15)

• Griffin Then Responded Saying, “I’m Sorry, My Bad: Calendar Days.” “‘I’m sorry, my bad: calendar days,’ Griffin said.” (Bill McMorris, “NLRB’s Griffin Forgets His Own Reforms,” The Washington Free Beacon, 3/25/15)

Harris Answered That He Was Amazed The NLRB General Counsel Got The Question Wrong. “‘Let me get it straight.  The General Counsel of the NLRB got that critical question wrong.  You had to turn around and get – I’m amazed,’ Harris said.  ‘I now understand why it’s called an ambush election.’” (Bill McMorris, “NLRB’s Griffin Forgets His Own Reforms,” The Washington Free Beacon, 3/25/15)

Griffin’s Inaccuracies At The U.S. Supreme Court:

In October 2017, Griffin Sent A Letter To The U.S. Supreme Court Explaining That He Gave Several “Inaccurate Answers” During Oral Arguments. “In an unusual letter to the U.S. Supreme Court, the National Labor Relations Board’s general counsel said he gave a series of inaccurate answers during a high-profile argument Monday on the rights of workers to file class-action lawsuits.” (Greg Stohr, “NLRB Lawyer Backtracks On Answer To U.S. Supreme Court,” Bloomberg, 10/3/17)

• Griffin Appeared “To Undercut His Argument That Workers Must Be Allowed To Press Group Claims Even If They Signed Agreements To Take Disputes Individually To Arbitration.” “During the session, Richard Griffin seemed to undercut his argument that workers must be allowed to press group claims even if they signed agreements to take disputes individually to arbitration.  Responding to Chief Justice John Roberts, Griffin said workers could be forced into an arbitration forum that barred group claims involving 50 or fewer people.” (Greg Stohr, “NLRB Lawyer Backtracks On Answer To U.S. Supreme Court,” Bloomberg, 10/3/17)

The Answer Confused Judge Alito Who Said, “If That’s The Rule, You Have Not Achieved Very Much.” “The answer left Justice Samuel Alito perplexed.  ‘If that’s the rule, you have not achieved very much,’ Alito said.” (Greg Stohr, “NLRB Lawyer Backtracks On Answer To U.S. Supreme Court,” Bloomberg, 10/3/17)

Griffin Later Said His Responses “Were The Result Of My Misunderstanding The Chief Justice’s Questions And Were Inaccurate.” “On Tuesday Griffin backtracked. His answers ‘were the result of my misunderstanding the chief justice’s questions and were inaccurate,’ he wrote.” (Greg Stohr, “NLRB Lawyer Backtracks On Answer To U.S. Supreme Court,” Bloomberg, 10/3/17)

The Workforce Fairness Institute is an organization committed to educating voters, employers, employees and citizens about issues affecting the workplace.  To learn more, please visit: http://www.workforcefairness.com.

To schedule an interview with a Workforce Fairness Institute representative, please contact Ryan Williams at (202) 677-7060.

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